Religious Discrimination Claim Dismissal Affirmed; Deviating From Federally-Mandated SSN Disclosure Would be an “Undue Hardship”

In Lowman v. NVI LLC, 2020 WL 4199956 (2d Cir. July 22, 2020) (Summary Order), the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s religious discrimination case asserted under Title VII of the Civil Rights Act of 1964.

Plaintiff asserted, inter alia, that defendant violated his rights under both statutes by refusing to hire him after he declined to provide it with his Social Security Number (SSN).

In sum, the court found that the requirement that plaintiff disclose their Social Security Number was mandated by law, and, therefore, departing from that policy – ostensibly to reasonably accommodate religious practice – would constitute an “undue hardship.”

The court outlined the law as follows:

To survive a motion to dismiss, a plaintiff asserting a Title VII discrimination claim must plausibly allege two elements: “(1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). Though the burden is minimal, the “well-pleaded factual allegations [must] plausibly give rise to an inference of unlawful discrimination.” Id. at 87 (emphasis in original). In a case involving alleged religious discrimination, a plaintiff may satisfy this burden by plausibly alleging that he or she “actually requires an accommodation of [his or her] religious practice” and that “the employer’s desire to avoid the prospective accommodation [was] a motivating factor in [an employment] decision.” E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 135 S. Ct. 2028, 2033, 192 L.Ed.2d 35 (2015). At the same time, an employer does not ultimately violate Title VII if the prospective accommodation “would cause the employer to suffer an undue hardship.”

Applying the law, the court – citing a letter from the Social Security Administration (SSA) that plaintiff attached to and incorporated in their complaint – explained why the complaint did not state a claim for religious discrimination:

We conclude that NVI’s SSN disclosure policy is thus mandated by federal law, which “requires that employers gather and report the SSNs of their employees to aid enforcement of tax and immigration laws.” Cassano v. Carb, 436 F.3d 74, 75 (2d Cir. 2006) (explaining that the plaintiff’s “reliance on anti-discrimination statutes is misplaced because defendants’ policy of requiring SSNs applied equally to all employees and was also a necessary consequence of defendants’ obligations under federal law”). Because NVI’s SSN disclosure policy is mandated by federal law, NVI cannot depart from the policy to accommodate Lowman without suffering an undue hardship. “Requiring defendants to violate the Internal Revenue Code and subject themselves to potential penalties by not providing [an employee’s] SSN on information returns results in undue hardship.”

The court also affirmed the dismissal of plaintiff’s claim under the Privacy Act, 5 U.S.C. § 552 – which provides that it is “unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number” – on the ground that it does not apply to private companies such as defendant.

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